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Behold the armies of the Lord

The Globe and Mail, 22 August 2021

Roy's Rock ­– the illegal monument to the Ten Commandments which Roy Moore, Chief Justice of Alabama, is refusing to remove from the lobby of the State Supreme Court – should have been a burning bush. For it has the potential to help both America and Canada to decide whether, and how, the ground on which our respective societies stand is holy ground.

Judge Thompson of the Federal District Court , who ordered the monument's removal, insists that it is not. America stands on secular ground, thank you very much, not holy ground. What offends him about the monument is that one cannot miss its “religious or non-secular appearance.” Indeed, to do so, one would need “to walk through the Alabama State Judicial Building with one's eyes closed.” This violates the separation of church and state, according to Judge Thompson. It might also lead to a nasty bruise or two.

Judge Moore, on the other hand, who is rumoured to have compared himself to Moses, thinks that America and its legal system do stand on holy ground. “He believes that America 's laws get their authority from the Bible,” says the New York Times , which notes the similar beliefs of Alabama 's Attorney-General, Bill Pryor. The Ten Commandments, insists the latter, “are the cornerstone of our legal heritage.”

This argument is beginning to rage on both sides of the border, and shows no sign of extinguishing itself in the near future. Canada, of course, has no official “separation of church and state” dogma, but its status as a secular society is widely trumpeted throughout the land, and recent court judgments have expended significant energy on the problem – for example, Chamberlain v. Surrey School District No. 36 looked at whether a School Board had wrongly excluded for religious reasons children's books featuring homosexual parents.

Now one doesn't have to be a judge to see that there is a difficulty here. Some of that difficulty is linguistic. Take “holy,” for example, which basically means “inviolable.” Judge Thompson's secular state is just as holy to him as the religious basis of the law is to Judge Moore. Appeal to the term “secular” likewise doesn't resolve much. Properly speaking, “secular” does not mean “non-religious,” but simply “temporal”– belonging to the present age rather than to eternity. And in that sense Judge Moore's legal tradition is just as secular as Judge Thompson's state.

But the difficulty isn't merely linguistic. How do we square the separation of church and state, as popularly understood, with the confession “one nation under God”? In Canada , how do we square the “secular society” notion, as we find it in common parlance, with the Charter's preamble, which links confidence in the rule of law to belief in the supremacy of God? Canada , says the Charter , is “founded upon principles that recognize the supremacy of God and the rule of law” – something our Prime Minister, for one, appears to have forgotten.

Perhaps we can't. Not long ago, the British Columbia Court of Appeal ( R. v. Sharpe ) described the preamble as “a dead letter” into which the Court had “no authority to breathe life.” Ironically, however, it found itself appealing to two prominent biblical metaphors, which come together (with a backwards glance at Moses) in 2 Corinthians 3:6. Shades of Roy 's Rock! A religious heritage is not so easy to shake off as all that.

Back to Chamberlain. The B.C. Supreme Court and the B.C. Court of Appeal were at odds over whether secular principles leave any room for “religious considerations.” In what may have been a burning bush moment for the Supreme Court of Canada, it decided that the School Board had erred. But it also made clear that a secular society is not a society, or need not be a society, with an aversion to the religious. Secular and religious are not antonyms. Which means that one does not have to park one's religious beliefs at the door of the School Board office, or of other public spaces, in order to engage in a secular function. Perhaps, then, one need not avert one's eyes either, when walking by a statue of Moses receiving the Ten Commandments.

The standoff at Roy 's Rock will not be resolved by the fines Judge Thompson has levied against Judge Moore. It will not be resolved by guides to lead the blindfolded safely to their destinations inside the Alabama State Judicial Building . (That would produce a classic case of the blind leading the blind, on the assumption that the guides, as state employees, would need to be blindfolded themselves!) For Roy 's Rock is but a symbol of a much larger problem. If we are to overcome the standoff at Roy 's Rock – that is, if we are to reach some meaningful consensus about the relation between religion and public policy in a secular society – we will need to dispense with the notion that the state and its legal apparatus are to be religion-free zones.

Now that conclusion doesn't put Judge Moore altogether in the clear. He is no Moses, and God may not deliver him from the fines imposed by his judicial Pharaoh. He may not have the better of the argument either, in important aspects. To say that the secular is not a religion-free zone hardly settles all such disagreements. It only gives us a chance to work them out more amicably. So before we cheer the arrival of the removal crew, we might just allow that Roy 's Rock has something worthwhile to teach us. Maybe Moses – the real one – does too.

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